Appellant, a staff sergeant (E-6), was tried
by a special court-martial composed of officer and enlisted members at
Rose Barracks, Vilseck, Germany. Contrary to his pleas, he was found guilty
of assault on a fellow noncommissioned officer (an E-5), resisting apprehension
by that soldier, and a service disorder by being naked in that same soldier’s
bedroom with that soldier’s wife. Arts. 91, 95, and 134, Uniform Code of
Military Justice, 10 USC §§ 891, 895, and 934, respectively.
On January 24, 1997, he was sentenced to a bad-conduct discharge, confinement
for 3 months, forfeiture of $600 pay per month for 3 months, and reduction
to E-1. On April 13, 1997, the convening authority approved this sentence,
and the Court of Criminal Appeals affirmed without opinion on July 14,
1998.

On March 1, 1999, this Court granted review
on the following two issues of law:

I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT
TO CONVICT APPELLANT OF RESISTING APPREHENSION WHERE THE EVIDENCE SHOWS
THAT SERGEANT VADEN INDICATED THAT HE AND APPELLANT WERE GOING TO GO TO
THE MP STATION TOGETHER, ALTHOUGH SERGEANT VADEN FAILED TO ADVISE APPELLANT
IN ANY WAY THAT HE WAS UNDER APPREHENSION.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT
TO CONVICT APPELLANT OF ASSAULTING A NONCOMMISSIONED OFFICER WHILE THAT
NONCOMMISSIONED OFFICER WAS IN THE EXECUTION OF HIS OFFICE.

We hold that the evidence of record is legally
sufficient to support findings of guilty to the above offenses. See
generallyJackson v. Virginia, 443 U.S. 307 (1979).

Sergeant Patrick Vaden testified that he deployed
to Bosnia sometime in 1995 with Bravo Company, 2d Battalion, 2d Infantry
Regiment. He had been in the Army 8 years and married to Chung Sun Vaden
for 6 years. His company returned unexpectedly to his unit stationed at
Rose Barracks, Vilseck, Germany, on September 16, 1996, and he asked his
executive officer, Lieutenant Able, to give him a ride to his home in the
housing area.

Sergeant Vaden then gave the only testimony
on the charged offenses as follows:

Q. Okay. What did you do after Lieutenant
Able dropped you off at your home?A. I went into my home, sir.

Q. Did you ring the doorbell?

A. No, sir,
I had a key.Q. What happened next?A. I went inside my home. I went upstairs.
My spouse had come to the top of the stairs out of the bedroom. I went
into the bedroom, turned the lights on, sir, and I looked around. I opened
the closet door and that’s when I saw Staff Sergeant Diggs in my closet,
naked.

Q. Backing up a bit, when you were on the stairs,
what was your wife wearing when she was at the top of the stairs?A. She was wearing a t-shirt or a teddy, she
had a blanket around her, sir, some type of sleeping gear.

Q. How do you describe her demeanor?A. She was pretty surprised I was home, sir.

Q. Were you surprised at the way she was acting?A. Somewhat, sir.

Q. And why
is that?A. Well, because, you know, I had come home
from Bosnia and her only question was, "What was I doing home?"

Q. What were you wearing at this time?A. I was wearing BDUs, sir.

Q. All right. Returning to the bedroom, and
you testified that you opened the closet door, you said Sergeant Vaden,
could you please exactly—-can you please describe exactly what you saw
when you opened the closet door?A. At first--when I first opened the closet,
the door, the light was on. It was dark inside the closet. But, like a—just
like a little ray of light came into the closet when I first opened it.
And that’s when I saw Staff Sergeant Diggs’ face. He was naked, he was
crouched down on the floor of my closet. He said, "Oh, my God," or "Oh,
God," something to that effect. Okay. And then I went ahead and opened
the rest of the closet door, sir.

Q. Let’s make it perfectly clear, is the man
that you saw naked in your closet that night here in this courtroom today?A. Yes, sir, beyond the shadow of a doubt,
sir.

TC: May the record reflect that the witness
has indicated the accused.

Q. What did Sergeant Diggs say, if anything,
when you opened the door?A. Like I stated, sir, he said, "Oh, my God,"
or "Oh, God."

Q. And what did you do next when you saw
him?A. It was just like a reaction, I just—I
went down on him and hit him a couple of times, sir.

Q. What position was he in?A. Initially he was just squatting down in
the floor of my closet. When I went ahead and opened the closet door, and
went to hit him, he went ahead and rolled onto his side, sir.

Q. How many times did you hit him?A. Three or four times, sir.

Q. And where did you hit him?A. In the side and in the arm, sir.

Q. Did you have anything in your hands as you
hit him?A. When I came into the house, I had my keys
in my hands, sir, and I had those the whole way up there. So I had my keys
in my hand.

Q. Did you use your keys as a weapon in any
way?A. No, sir, absolutely not.

Q. Why did you hit him?A. I can’t explain why I hit him, sir, it
was just a natural reaction. I mean, it wasn’t anger or, you know, revenge
or anything, I just did it. I don’t know why I did it. I just did it, sir.
It was like a reflex, you know.

Q. What happened next?A. Like I stated, I hit him about three
times, sir, and then my spouse got into—between us. And at that time I
backed up off from him, sir.

Q. After you backed up off from him, what did
he do?A. He came up out of the closet—we kind of
circled around and he came up out of the closet and my spouse was standing
a little off to my left. He was standing on the other side of the bed
from me. You know, he told me to "calm down," that he’d been caught. He
was going to turn himself in.

Q. Did you respond to his statement?A. Yes, sir. I said, "Yes, he was caught
and, yes, he was going to turn himself in. And he was going to come with
me and we both were going to go to the MP station together," sir.

Q. So you’re convinced that he understood you
were going to take him into the MP station?A. He definitely understood, sir.

Q. And you were wearing your BDUs at this time
still. Is that correct?A. Yes, sir.

Q. I assume your BDUs have all the proper insignia
on them?A. That’s correct, sir.

Q. What happened after this conversation? What
happened next?A. After this conversation, he—a couple of
things were happening all at the same time, you know, while we were talking,
he was putting his pants on and stuff, sir, and getting dressed. He was
putting on BDUs as well. While all this was going on, we were also moving
downstairs, sir. Eventually we got down to the bottom of the stairs. At
some point, my spouse left and went outside and got in the car and drove
off, and Staff Sergeant Diggs and myself were at the entranceway of my
home and he was putting his boots on, sir. He’d already got his top on—he
grabbed a PT top off the balcony on the way down, sir. So he was—in state,
he was getting dressed downstairs in the doorway with me, and my spouse
had already left at this time, sir.

Q. Did you tell him anything? Did you say anything
to him as he was putting on his boots?A. I was hurrying him up, ‘cause it was like
he was stalling for time, you know.

Q. What happened after you hurried him up?A. Well, eventually, he got his boots on and
came out the doorway, you know. I had to turn my back on him to come
out the doorway and right when I got outside, he pushed me off to the left.

Q. Did you go out the doorway first?A. Yes, sir.

Q. And he was behind you. Correct?A. Yes, sir.

Q. How hard did he push you?A. Pretty hard, sir.

Q. Did he push you over?A. He pushed me onto the ground, sir.

Q. What happens after he—what happened after
he pushed you down on the ground?A. When I got up and I turned around, he was
already running up through the housing area, sir, you know. I gave chase
for a little bit, but I couldn’t catch him, sir.

Q. Can you estimate how far you chased him?A. I chased him for maybe 20 or 30 meters,
sir.

Q. And why do you stop chasing him?A. He was just too fast for me, sir. He had
a head start on me and he was moving out.

Q. Now from the time you got home to the time
that you broke off the chase, how much time had passed?A. Less than 10 minutes, sir.

Q. What did you do after you broke off the
chase?A. I kind of stood there for a few minutes,
sir. I didn’t really know what to do, you know. My wife had taken off with
the car, this guy had run off through the housing area, you know. I’m standing
there with the door of my house open. I had just gotten home from Bosnia.
I was kind of bewildered and confused. I didn’t exactly know what to do
next--step--point, sir.

Q. Where did you go after that?A. I went to the MP station, sir.

Q. How long did it take you to get there?A. Less than—about 10 minutes, sir.

Q. Did you walk or did you drive?A. I walked, sir.

Q. So approximately what time did you arrive
at the MP station?A. Midnight, maybe a little before midnight,
sir.

Q. Who did you talk to at the MP station?A. I talked to several people. I talked to
a couple desk sergeants. They were reservists and they didn’t know what
to do, so they had to get on the telephone and call some other people.
Eventually, Investigator Carson arrived at the MP station and he’s the
one I talked to, sir.

Q. And how much time passed between your arrival
at the MP station and your talking to Investigator Carson?A. Maybe 10 minutes, sir.

Q. What did you tell Investigator Carson, if
anything?A. Well basically I told him the story I just
told you, sir.

(Emphasis added.)

I

The first granted issue challenges the sufficiency
of the evidence in this case to support appellant's conviction for resisting
apprehension in violation of Article 95. He contends, as he did at trial,
1
that the prosecution did not introduce sufficient evidence to prove all
the elements of this offense.
Seegenerally para. 19b, Part
IV, Manual for Courts-Martial, United States (1995 ed.). In particular,
he asserts that there was no evidence presented that he was "clearly notified
that he [was] in custody" before he allegedly pushed Sergeant Vaden and
ran away. Final Brief at 12. We disagree.

There is no dispute that the prosecution was
required to prove that appellant had clear notice of the apprehension which
he was charged with resisting. See para. 19c(1)(a), Part IV, Manual,
supra;
United States v. Garcia-Lopez, 16 MJ 229, 231 (CMA 1983) (holding
that an apprehension is "effected by clearly notifying the person to be
apprehended that he is thereby taken into custody."). Moreover, there is
no real dispute that such notification need not be oral or written but
"may be implied by the circumstances" in a particular case. See
RCM 302(d)(1), Manual, supra; seealsoUnited States
v. Kinane, 1 MJ 309, 313-14 (CMA 1976). The critical question before
us is whether the evidenced circumstances of this case were such that a
rational person could find beyond a reasonable doubt that appellant knew
he was being apprehended. SeegenerallyJackson, 443
U.S. at 314.

The circumstances that constitute clear notice
of apprehension have been determined on a case by case basis. In United
States v. Garcia-Lopez, supra, this Court held that the entrance
of military authorities into a servicemember's barracks room announcing
their intention to search his room and directing him to stay in that room
was not clear notice of an apprehension. In United States v. Sanford,
12 MJ 170, 173-74 (CMA 1981), this Court held that words from a sergeant
to another enlisted man that "Lieutenant Young wants to see you," and following
that servicemember to the battery commander's office did not constitute
clear notice of apprehension. Finally, in Kinane, supra at
311, 313-14, this Court deferred to a lower court's finding that bringing
a servicemember to the site of an alleged crime, reading him his rights,
and subsequently questioning him did not constitute a custodial arrest.

The circumstances of appellant's case are quite
different from those noted in the above cases. Here, there was evidence
that he was discovered naked in a fellow sergeant's room closet, late at
night, just after that servicemember's wife emerged partially clad from
that room. This evidence suggested that appellant, at the very least, was
engaging in an ongoing service disorder or discredit in violation of Article
134. SeeUnited States v. Frazier, 34 MJ 194 (CMA 1992) (holding
that romantic behavior not amounting to sexual intercourse between officer
and enlisted man's wife was conduct unbecoming an officer). Moreover, evidence
was introduced that appellant admitted his wrongdoing and that he should
be placed in the custody of military police. This was not a situation where
a servicemember was simply being questioned or investigated for a prior
offense. Cf. Kinane and Garcia-Lopez, both supra.
Finally, there was evidence that Sergeant Vaden rejected appellant's offer
to turn himself in and insisted that this senior noncommissioned officer
subject himself to a junior noncommissioned officer's control. This was
not a routine military practice or operation in any way. Cf. United
States v. Sanford, supra.

In our view, these circumstances could lead
a rational factfinder to find beyond a reasonable doubt that appellant
had clear notice of his apprehension by Sergeant Vaden. An extraordinary
situation was evidenced, in which criminal liability was expressly admitted
by a senior noncommissioned officer and personal control or custody exercised
by a subordinate noncommissioned officer. Of course, the factfinders were
free to decide that notice of apprehension was not clear, but such a possibility
did not undermine the legal sufficiency of the evidence in this case. See
United States v. Harper, 22 MJ 157, 163 (CMA 1986); United States
v. Ford, 23 MJ 331, 337 (CMA 1987). The members in this case, under
proper instructions, decided otherwise, and we perceive no legal basis
to overturn their decision. SeeJackson v. Virginia, supra.
2

II

The second granted issue is again phrased in
terms of legal sufficiency, but it concerns appellant's conviction for
assault on a noncommissioned officer in the execution of his duties, in
violation of Article 91. That codal provision provides special protection
to a noncommissioned officer from assaults while "that officer is in the
execution of his office." Appellant argues that, based on the evidence
in this case, no reasonable person could find that Sergeant Vaden was acting
consistent with his status and office as a noncommissioned officer when
he was pushed by appellant. SeegenerallyUnited States
v. Lewis, 7 MJ 348, 350 (CMA 1979).

Appellant initially argues that the evidence
shows Sergeant Vaden was on a personal "frolic" of revenge when he attempted
to apprehend appellant. Seeid. at 351-52; para. 14c(1)(b),
Part IV, Manual, supra. This was a question of fact for the members.
SeealsoUnited States v. Hoffer, 869 F.2d 123, 125 (2nd
Cir. 1989) (holding no bright-line test in determining whether federal
officer acting in execution of office or on personal frolic). There was
evidence here of a soldier caught in the act of committing a crime (a service
discredit or disorder) in military housing and his restraint by a noncommissioned
officer. See Art. 7(b), UCMJ, 10 USC § 807(b); seealsoUnited States v. Hoy, 137 F.3d 726 (2nd 1998); United
States v. Reid, 517 F.2d 953, 964 (2nd Cir. 1975) (arrest
made by officer although not specifically mandated by Congress). Moreover,
there was evidence that the arresting officer employed normal apprehension
procedures to terminate this potentially explosive situation. SeeLewis, supra at 352 (manner of arrest may give rise to departure-from-office
claim). Accordingly, the members had an evidentiary basis to decide that
Sergeant Vaden was acting as a noncommissioned officer, not an avenging
cuckold, when he attempted to escort appellant to the military police station.
SeeUnited States v. Clemons, 32 F.3d 1504, 1507 (11th
Cir. 1994) (recognizing "purely personal frolic" standard).

Appellant also argues that Sergeant Vaden divested
himself of the protections of his office by his earlier conduct in repeatedly
striking appellant while he cowered naked in Sergeant Vaden’s closet. See
para. 14c(1)(d), Part IV, Manual, supra. He cites numerous cases
from our Court for the proposition that the defense of divestiture exists
when an officer engages in misconduct antithetical to his status as an
officer. SeeUnited States v. Richardson, 7 MJ 320 (CMA 1979);
United
States v. Hendrix, 21 USCMA 412, 45 CMR 186 (1972); United States
v. Struckman, 20 USCMA 493, 43 CMR 331 (1971); United States v.
Noriega, 7 USCMA 196, 21 CMR 322 (1956); cf. Lewis,
supra
at 350. We disagree with his argument in this case.

We initially note that Sergeant Vaden’s conduct
in physically striking appellant while naked in Sergeant Vaden’s closet
was a criminal assault for which he could have been prosecuted under Article
128, UCMJ, 10 USC § 928. Cf. 2 W. LaFave & A. Scott, Substantive
Criminal Law § 7.10 at 259 (1986) (noting unanimity of modern
authorities rejecting unwritten law that no crime at all for enraged husband
to kill wife's paramour). Moreover, such misconduct on his part divested
him of his authority as a noncommissioned officer for purposes of immediate
physical responses by appellant. See para. 14c(1)(d), supra;
United
States v. Struckman and United States v. Lewis, both
supra.
Nonetheless, other evidence was admitted in this case that Sergeant Vaden
desisted in his illegal conduct and, thereafter, attempted to resolve this
matter within appropriate military channels.

We do not view our divestiture case law as
establishing a perse rule that once an officer engages in
misconduct, he can never assert or regain his status or office. See
United States v. Lewis, supra (rejecting perse
rule that propriety of conduct is totally dependent on finding of probable
cause). Such a rule would implicitly discourage officers from stopping
their misconduct and impermissibly narrow the broad protection afforded
public officers in the performance of their legitimate duties. See generallyUnited States v. Hoy, supra. Instead, whether Sergeant Vaden
was divested of his office as a noncommissioned officer making an apprehension
was a question for the members to decide on the basis of all the circumstances
of this case under appropriate instructions provided by the military judge.
3 Accordingly, we find no
legal insufficiency on this basis. SeealsoUnited States
v. Frizzi, 491 F.2d 1231, 1232 (1st Cir. 1974) (conviction
for assaulting federal officer approved where postal worker left his car
and sought apology from traffic-enraged citizen who later spit on him).

The decision of the United States Army Court
of Criminal Appeals is affirmed.

2 On a
personal note, I find facially appealing merit in the factual-based arguments
of my esteemed brother in dissent. I would listen more attentively to him
if he and I were sitting side-by-side in a jury box, rather than on an
appellate bench. However, the binding precedent and operating limitations
of Jackson v. Virginia, supra, leave me little choice in
affirming the convictions of appellant which were properly determined by
the jury in this case.

The jury in the United States
military justice system is one of the best in the world. Almost all officer
members have at least one university degree, and most enlisted personnel
have some university education. More importantly, the jury in the military
is expert at sorting out military issues such as the functioning between
the rank structure (sergeant E-5 and staff sergeant E-6) and the responsibilities
of noncommissioned officers, even in the extraordinary circumstances of
the present case—-a soldier unexpectedly returns home from a deployment
to Bosnia and finds his wife with a naked man in his own bedroom. I trust
the jury’s verdict here. The jury is an amazing institution.

Almost 80 years ago, G. K. Chesterton,
the English essayist, observed the following about a jury:

Our civilization has decided,
and very justly decided, that determining the guilt or innocence of men
is a thing too important to be trusted to trained men. It wishes for light
on that awful matter, it asks men who know no more law than I know, but
who can feel the things I felt in the jury box. When it wants a library
catalogued, or the solar system discovered, or any trifle of that kind,
it uses up its specialists. But when it wishes anything done which is really
serious, it collects twelve of the ordinary men standing round. The same
thing was done, if I remember right, by the Founder of Christianity.Gilbert K. Chesterton, Tremendous
Trifles: The Twelve Men (New York, Dodd Mead and Company, 1922) at
p. 86-87.

3 The
question of divestiture was presented by the military judge to the members
by means of instructions unobjected to by the defense. He said:

Now the evidence has raised
an issue as to whether Sergeant Vaden conducted himself--or himself prior
to the alleged offense in a manner which took away his status as a noncommissioned
officer acting in the execution of his office. A noncommissioned officer
whose own language and/or conduct under all the circumstances departs substantially
from the required standards appropriate for that individual's rank and
position under similar circumstances is considered to have abandoned that
rank and position. In determining this issue, you must consider all
the relevant facts and circumstances, including Sergeant Vaden's conduct
between the time he--or at the time he found someone in his bedroom closet
and up until the time that that someone ran away from him.

You may find the accused guilty
of the offense of assault on a noncommissioned officer, in violation of
Article 91 of the Uniform Code of Military Justice, only if you are satisfied
beyond a reasonable doubt that Sergeant Vaden did not, by his conduct and/or
language, abandon his status as a noncommissioned officer acting in the
execution of his office.

(Emphasis added.)

GIERKE, Judge, with whom EFFRON, Judge, joins
(concurring in part and dissenting in part):

I agree with only so much of the majority opinion
as affirms appellant’s conviction of conduct prejudicial to good order
and discipline, in violation of Article 134, Uniform Code of Military Justice,
10 USC § 934. I disagree with the majority’s conclusion that the evidence
is legally sufficient to support appellant’s conviction of resisting apprehension
and assaulting a noncommissioned officer (NCO) in the execution of his
office, in violation of Articles 95 and 91, UCMJ, 10 USC §§ 895
and 891, respectively.

In my view, the evidence of resisting apprehension
is legally insufficient on two grounds. First, no rational person could
conclude beyond a reasonable doubt that appellant knew that Sergeant (SGT)
Vaden was attempting to exercise his authority as an NCO to apprehend him.
What appellant saw was an enraged husband who had just attacked him. SGT
Vaden’s attack on appellant stopped only because Mrs. Vaden intervened.
SGT Vaden was junior to appellant and not engaged in law enforcement duties.
At no time did he say or do anything indicating that he was invoking his
status as an NCO.

Appellant’s response to SGT Vaden’s attack
was to assure SGT Vaden that he would turn himself in. SGT Vaden agreed
with appellant’s offer to turn himself in, and he told appellant that he
would go with him to the military police station, obviously to ensure that
appellant did in fact turn himself in. Appellant’s offer to turn himself
in, and SGT Vaden’s agreement with that offer, are inconsistent with any
notion that SGT Vaden was trying to apprehend him.

Second, even if a rational factfinder could
conclude beyond a reasonable doubt that appellant knew SGT Vaden was attempting
to apprehend him, the evidence does not support a charge of resisting apprehension.
Apprehension is complete when the person being apprehended submits to authority
or is physically subdued. See para. 19c(3)(a), Part IV, Manual for
Courts-Martial, United States (1995 ed.).[1]
Assuming arguendo that there was an apprehension, it occurred when
appellant allegedly submitted to SGT Vaden’s control in the bedroom. From
that point on, appellant was in custody. Paragraph 19c(1)(c), supra,
provides that "attempts to escape from custody after the apprehension is
complete do not constitute the offense of resisting apprehension." See
alsoUnited States v. Glaze, 11 MJ 176, 177 n. 1 (CMA 1981);
United
States v. Ridgeway, 13 MJ 742, 748 (ACMR 1982).

I also disagree with the majority’s conclusion
that the evidence is legally sufficient to support appellant’s conviction
of assaulting a noncommissioned officer "in the execution of his office."
SGT Vaden’s actions throughout the altercation were personal, not official.
SGT Vaden’s actions were those of an avenging victim, not a sergeant in
the execution of his office. His first action, physically attacking appellant,
was clearly personal and inconsistent with any officiality. SGT Vaden did
nothing after that attack to invoke his status as a noncommissioned officer.

Finally, in my view, there is no issue of divestiture.
Divestiture occurs only when the actor holds authority by virtue of rank
or position and divests himself or herself of that authority by improper
conduct. See paras. 14c(1)(b) and 15c(3), Part IV, Manual, supra;[2]
United
States v. Lewis, 7 MJ 348, 352 (CMA 1979). SGT Vaden neither held nor
invoked any authority. He was junior to appellant, not engaged in law enforcement
or occupying any position of authority over appellant, and never invoked
or relied on his status as an NCO to apprehend or detain appellant, or
to hold him in custody.

In my view, the majority’s decision is contrary
to the law and the facts. Accordingly, I dissent.

FOOTNOTES:

1 Although paragraph 19
was substantially revised in the 1998 Manual, this provision was unchanged
except for being renumbered as paragraph 19c(4)(a).